Wednesday, October 05, 2011

The Texas Court of Criminal Appeals today issued a remarkable, unanimous opinion (pdf) reversing the judgment of the 14th Court of Criminal Appeals (Houston) to hold that a trial judge abused his discretion in refusing to allow expert witness testimony by Dr. Roy Malpass of the University of Texas at El Paso about the potential pitfalls of eyewitness identification in a capital murder case.

The opinion (State v. Tillman), authored by Judge Barbara Hervey, cited the host of false convictions based on faulty eyewitness identifications discovered through DNA exonerations, as well as a well-developed body of scientific research critiquing over-reliance on eyewitness identification errors:

In a recent opinion of the Supreme Court of New Jersey, New Jersey v. Henderson, 2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011), the court focused on the reliability of an eyewitness identification. The New Jersey court discussed the broad consensus within the scientific community on the relevant scientific issues. Id. at 113-15. Specifically, the court referred to the results of a 2001 survey of sixty-four experts, mostly cognitive and social psychologists:

The Supreme Court of New Jersey went on to note that, in the ten years since the Kassin study, the consensus that the study of eyewitness identification is a reliable field of research has continued to grow. Id. at 114-15. And the court highlighted that law enforcement and reform agencies throughout the country have taken note of the scientific community’s findings, forming task forces and developing new procedures to improve the reliability of eyewitness identifications. Id. at *115-21. Additionally, the United States Supreme Court recently granted certiorari on another case involving the reliability of eyewitness identification. Perry v. New Hampshire, 79 U.S.L.W. 3672 (U.S. May 31, 2011) (No. 10-8974).

In this instance, the witness in question first viewed a photo spread including the suspect and failed to identify him, but a week later viewed a live lineup including the same man and identified him there. Malpass would have testified that the process was overly suggestive because the witness could have remembered the man from the earlier photo spread instead of from the crime event. According to Malpass, more than 30 studies have studied that specific scenario and concluded that it contributed to higher error rates.

The appellate court's ruling was reversed and the opinion was sent back to them for a harm analysis, but this is the first time the Court of Criminal Appeals has overruled a trial court's exclusion of expert testimony on eyewitness identification errors based on an "abuse of discretion" standard, which means we may expect such testimony to be allowed in courtrooms much more frequently in the future. The CCA said that such testimony may not be relevant in all cases involving eyewitnesses, but where the scientific research "fits" closely with the facts of the case, it must be allowed.

"Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. " Pretty damning statement there. Now how do we go about publicizing that fact and get the networks and TV stations and major newspapers to report that so it becomes common knowledge?

If they can't identify him, then it must be a stranger committing the crime. If it was your brother or cousin or husband then you should be able to identify the bastard. Seems like you could pick your brother out of a lineup.

the problem here is they first showed the witness a set of photo's where this person's photo was. they didnt' get an id! then later on they had a physical lineup with him in it. he then OF COURSE recognzied the guy! of course we have no way to know if he recognzied him from the attack! which the court should have realized from the FACT he didnt' pick him out of the photo array. Or he just recognized him as being ONE of the PHOTO'S he'd alrady seen.

whole lot of reasonable doubt there and last last time i looked our constution requires a NOT GUILTY verdict if they CANNOT convict BEYOND A REASONABLE DOUBT!

A different question with eyewitness id will be taken up by the Supreme Court - outside ID. Even though a different issue, just the fact it will be addressed by the court seems to me the whole question is being brought to the public. More importantly IMO is the recent decisions by the CCA. Are we seeing a change on this court finally? We can only hope.

Oh, failed to wish you a happy birthday in another post. I too found grits after becoming personally concerned with criminal justice. Before it was a academic interest but thanks to Grits it's become a lifeline.

You are like RoboCop going after every aspect of the justice, law enforcement and correctional systems. These systems must be attacked daily in order to show that criminals should really be released. These systems must all be discredited or undermined.

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